Architects of Anglo-American Justice

By H. Eugene Lehman

This book traces the history of English law and government for fourteen centuries, from the withdrawal of Roman Legions from Britannia to separation of Englands New World colonies and the ratification of the Constitution of the United States. The governments of the United States and Great Britain, although separate now for over two centuries, share a deep common heritage. The starting point for American legal history goes back to the roots of English common law.
This narrative follows the evolution of Anglo-American common law. The chapters are arranged as a collection of brief biographies that credit in chronological order the individuals whose contributions to law and justice helped to create the tranquil civil world most of us enjoy today.
The model for English colonial government in the New World was the common law that had evolved over centuries in England. In much of history, laws were created to protect the wealth and power of those who enjoyed social privilege. Gradually, equity and justice in the protection of basic human rights of common mankind became compelling concerns of law and government. Slowly, even the rights of minorities whose members differed from the mainstream in language, religion, culture, and ethnicity became a concern of justice.
Each upward step in legal equity has been a move from injustice to a little less injustice. The evolutionary path toward greater justice has had its ups-and-downs. Reverses in justice occurred with the Anglo-Saxon invasion after the fall of Ancient Rome, with the Norman Conquest of 1066, in the Wars of the Roses, and in the vain self-serving reign of Henry VIII. Periods of notable advance in the history of law came with personal contributions of Alfred the Great, Henry Plantagenet, Simon de Montfort, Edward Longshanks, Good Queen Bess, Thomas Egerton, Edward Coke, Oliver Cromwell, and Founding Fathers of the United States Constitution.
All these events are revisited. The author has expressed original opinions and explanations of the record that will disagree in some instances from interpretations of these events here by others.
The author hopes that this informal telling of a story, will contribute to an appreciation that living today in an enlightened time that aspires to provide equal justice for all under common law is far superior to tribal life in a far distant Dark Ages when might-made-right and getting-even was the accepted goal of justice by tribal barbarians.

H. Eugene Lehman, Chapel Hill, NC, USA 2014

• Language: English
• Publisher: AuthorHouse
• Release date: Aug 6, 2014
• ISBN: 9781496925282

H. Eugene Lehman

H. Eugene Lehman is a native of Kentucky; he received the B.A. degree from Maryville College-Tennessee; the M.A. degree from the University of North Carolina-Chapel Hill, and the Ph. D. degree from Stanford University. He spent a year in post-Doctoral study at the University of Bern, Switzerland and at the University of Naples, Italy. For a year he was a guest exchange professor at the University of Vienna-Austria. During over four decades of university teaching and scholarship at the University of North Carolina-Chapel Hill, he authored several college texts, wrote scholarly papers on a variety of topics, and twice received awards for excellence in undergraduate teaching. His lifetime of scholarship and teaching is reflected in an ability to describe and explain complex issues clearly with whimsical perception. In retirement, the author has written five books. The present book, Architects of Anglo-American Justice: Draftsmen of Common Law from Roman Britannia to the Constitution of the United States of America is a companion of the author’s previous books: Lives of England’s Monarchs: The Story of our American English Heritage (2006), and Lives of England’s Reigning and Consort Queens: England’s history through the eyes of its Queens (2011), published by AuthorHouse. This series knits factual details on widely divergent aspects of English history and roots of American government into an easy read for understanding, without technical complexity.

Book preview

AuthorHouse™ LLC

1663 Liberty Drive

Bloomington, IN 47403

www.authorhouse.com

Phone: [phone]

© 2014 . All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse   09/10/2014

ISBN: 978-1-4969-2529-9 (sc)

ISBN: 978-1-4969-2527-5 (hc)

ISBN: 978-1-4969-2528-2 (e)

Library of Congress Control Number: 2014912315

Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

Certain stock imagery © Thinkstock.

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Contents

Appreciation

Author’s Special Usage

Preface

Introduction: Anglo-American Common Law

Creation Of Common Law

Napoleonic Code

PART I

FOUNDATIONS OF ANGLO-AMERICAN GOVERNMENT AND COMMON LAW (A.D. 406 — 1307)

Chapter 1 Romanized Celtic Rule In Britannia (C. 400 — C. 460)

Last Roman Rulers In Britannia

Vortigern Attempts To Rule Britannia

Hengist Takes Command Of England

Chapter 2 Anglo-Saxon England In The Dark Ages (C. 490 — C. 800)

Norse Language, Customs,And Tribal Law Established In England

Heptarch Of Anglo-Saxon Kingdoms

King Ethelbert Of Kent

Post-Nicene Trinitarian Christianity Enters England

Excerpt From Doom Laws Of King Ethelbert Of Kent

King Ine’s Code Of Social Privilege (C. 680-710)

Chapter 3 Awakening Of Anglo-Saxon Legal Justice (C. 800 — C. 1066)

Consolidation Of The Anglo-Saxon Heptarch

Government Of Alfred The Great

Doom Book Of Alfred The Great

Anglo-Saxon Law Of King Canute And Edward The Confessor

Edward The Confessor’s Law

Chapter 4 Norman Rule Of England (1066-1154)

Salic Law In French Normandy

Norman Conquest Of England (1066)

King William I: The Conqueror’s Government (1066-1087)

King William II (1087-1100)

King Henry I: Norman-Anglo-Saxon Government (1100-1135)

Charter Of Liberties Of Henry I

Henry I, The Lion Of Justice

Norman Legacy In English Common Law

Chapter 5. Henry II: Foundation of English common law (1154-1189

Henry Plantagenet’s Government

Court Innovation In The Reign Of Henry Ii

King’s Bench And Appellate Courts

Trial By Jury

Courts Of Assize — Grand Jury

Contest Between State And Church (1164-1170)

Thomas À Becket And The Constitutions Of Clarendon

Elements Of Henry Plantagenet’s Legal Code

Chapter 6 King John: Magna Charta (1199-1216)

John’s Misuse Of Royal Power

Magna Charta

Major Provisions In The Great Charter

Chapter 7 Henry III: Simon De Montfort And The Second Baron’s War (1216-1272)

Social Hierarchy In Medieval England

Reign Of Henry Iii, The Builder

Simon De Montfort And The Provisions Of Oxford-Westminster

Second Barons War

Summary Of Revised Provisions Of Oxford-Westminster (1258, ’59, ’64)

Chapter 8 Edward I, The Lawgiver (1267-1307)

Court Systems Established By Edward I

First Experiments In Parliamentary Government By Edward I

Summary Of Great Council Legislation Of Edward I

Memorable Laws Passed By Edward I

Chapter 9 Beginning Of The Legal Profession

Scholasticism In The 14Th Century

Legal Formality Following The Reign Of Edward I

Precedent In Common Law

Medieval Writs That Formalized Due Process Of Law

Timeless Writs Of Law

Great Writ Of Habeas Corpus

PART II

LATE MEDIEVAL GOVERNMENT AND COMMON LAW (1327-1603)

Chapter 10 Turbulent 14Th Century (1330-1399)

Beginning Winds Of Change

Anglo-French Hundred Years War

Black Death Decimates Europe

Social Unrest At Mid 14Th Century

Great Western Schism (1378-1418)

Wat Tyler’s Peasant Revolt (1381)

Chapter 11 Parliament Challenges The Crown (1377-1413)

Status Of Parliament At End Of The 14Th Century

Richard Ii And The Merciless Parliament (1388-1389)

Abdication Of Richard Ii And Coronation Of Henry Iv (1399)

Law And Government At Mid 15Th Century

Guild System And Inns Of Court

Sample General Laws From Mid 15Th Century England

Chapter 12 Decline In Justice During The Wars Of The Roses (1422-1485)

Daily Life At Mid 15Th Century

Mismanagement Of Government In The Reign Of Henry Vi

Wars Of The Roses

Events Leading To Civil Rebellion

Summary Of The Wars Of The Roses

Use Of Writ Of Attainder In The Wars Of The Roses

Chapter 13 Plantagenet-Tudor Transition (1485-1509)

Henry Tudor Reclaimed Power For The Crown

Attainder Trial Of Edward Plantagenet Earl Of Warwick

Star Chamber Tactics, The Key To Absolute Power

Chapter 14 Autocratic Power In The Reign Of Henry Viii (1509-1547)

Overview Of The Reign Of Henry Viii

Notorious Attainder Trials Of Henry Viii

Life Of Chancellor Thomas More

Rise And Fall Of Thomas Cromwell

Trial Of Margaret Plantagenet De La Pole

Chapter 15 Henry Viii And Creation Of The Church Of England

Cause For Separation Of England From The Roman Catholic Church

Anglican Catholic Church Of Henry Viii

Catholic Protest In The Pilgrimage Of Grace

Bishops Book And Statute Of Six Articles

Puritan Protest And Trial Of Anne Askew

Chapter 16 Religious Upheaval In Reigns Of Edward Vi And Mary I (1547-1558)

Literacy In England At Mid 16Th Century

Protestant Anglican Church Of Edward Vi (1547-1553)

Catholic English Church Of Mary I (1553-1558)

Chapter 17 Elizabeth I: My People Are My Charge (1558-1603)

England Inherited By Elizabeth

Government In Elizabeth’s Reign

Elizabethan Attainder Trials

Trial Of Mary Queen Of Scots

Trial Of Robert Devereux Earl Of Essex

Elizabeth’s Anglican Church

Humanitarian Acts Of Elizabethan Parliaments

PART III

RISE OF REPUBLICANISM IN THE STUART DYNASTY (1603-1714)

Chapter 18 Tudor-Stuart Transition (1603-1625)

Religious Controversy

Hampton Court Conference And King James Bible

Catholics And The Gunpowder Plot

Revisions Of The Book Of Common Prayer

Rancor Between Crown And Parliament

Chapter 19 Thomas Egerton: International Law And Citizenship

Foreign Trade And Court Of Admiralty

Calvin Case Of The Postnati And Citizenship

Thomas Egerton’s Triumph Over Edward Coke

Chapter 20 Edward Coke: Patriarch Of Modern English Common Law

Edward Coke As Attorney And Judge

Edward Coke As Member Of Parliament In Opposition To King Charles I

Summary Of Edward Coke’s, The Petition Of Right

Edward Coke’s Encyclopedia Of English Common Law

Chapter 21 English Civil War And Republican Protectorate (1642-1660)

King Charles I And Prelude To Civil War (1625-1642)

English Civil War (1642-1647-’49-’51)

Nineteen Propositions Of The Long Parliament

Republican Experiment In Government

Lord Protector Oliver Cromwell

Republican Instrument Of Government (1653-1658)

Chapter 22 Restoration Of The Monarchy (1660-1689)

Self-Indulgent Reign Of Charles Ii (1660-1685)

Summary Of The Declaration Of Breda

Failed Reign Of James Ii (1685-1688)

Glorious Revolution (1688-1689)

Chapter 23 Parliamentary Monarchy Of William Iii & Mary Ii And Queen Anne (1689-1714)

English Bill Of Rights

England’s Unwritten Constitution

PART IV

ANGLO-AMERICAN COLONIES FROM FOUNDING TO INDEPENDENCE (1607-1791)

Chapter 24 Virginia Territory Colonies

Jamestown Virginia Colony

Great Charter Of Virginia Of 1619

Maryland Colony

Chapter 25 Massachusetts Territory Colonies

Plymouth Colony

Paraphrase Of The Mayflower Compact

Massachusetts Bay Colony

New Hampshire, Connecticut, And New Haven Colonies

Rhode Island Colony

Chapter 26 Carolina Territory Colonies

Lords Proprietor Of The Carolina Territory

North Carolina, South Carolina, And Georgia Colonies

Chapter 27 Mid Atlantic Territory Colonies

New York Colony

New Jersey Colony

Pennsylvania Colony

Delaware Colony

Mason-Dixon Resolutuon Of Mid Atlantic Colonial Border Disputes

Chapter 28 Growing Controversy In Anglo-American Colonies

French And Indian War (1754-1763)

Colonial Friction Following The French And Indian War

Billeting British Soldiers In Colonial Homes

Stamp Act Outrage

Declaratory Act Alienation Of Colonies (1770-1774)

Chapter 29 First And Second Continental Congresses (1774-1776)

First Continental Congress

Battle Of Lexington And Concord (April 19, 1775)

Battle Of Breed’s And Bunker Hill (June 17, 1775)

Second Continental Congress

Prelude To The Declaration Of Independence

Abbreviated Text Of The Declaration Of Independence (July 4, 1776)

Chapter 30 United States War Of Independence (1776 To 1781)

Chapter 31 Confederated States Of America

Articles Of Confederation (1778-1789)

Summary Of The Articles Of Confederation

Confederation Congresses (1781-1789)

Chapter 32 United States Constitution And Bill Of Rights (1787-1791)

Philadelphia Constitutional Convention (May 25 — September 17, 1787)

Articles Of The Constitution Of 1787

Ratification Of The Constitution

First Constitution Congress Affirms The Bill Of Rights

Passage Of The American Bill Of Rights

Summary Of The American Bill Of Rights: Constitutional Amendments 1 — 10

Summary Of Constitutional Amendments 11 To 27

Endnote Anglo-American Parting Of The Ways

About The Author

APPRECIATION

This narrative on civil justice under law is told with homage to those who labored for over a millennium of Anglo-American history to transform barbarism into the semblance of civilized living we take for granted in the 21rst century.

For encouragement during preparation of this work:

ARCHITECTS OF ANGLO-AMERICAN JUSTICE:

Draftsmen of Common Law from Roman Britannia to

The Constitution of the United States of America

The author acknowledges his indebtedness

To

Michael Philip Gates

And

Dorothea Claire Lehman Leonard

And to

Friends with special interest in law:

John R. Bennett, Garry M. Weaver, and Ian A. Parry

Cover Flags

British Union Jack & American Old Glory

AUTHOR’S SPECIAL USAGE

Given here are conventions used in the narrative text:

Historical data were selected to meet needs of readers with interest in the historical foundation for justice under law in England and the United States of America.

Chapters were written as independent accounts to be read in any order of personal choice. Data were selected to illuminate personalities and events in the history of judicial law. Events are occasionally revisited with different emphasis to reflect different ways in which contemporaries experienced the same events.

Footnote materials are inserted in situ through the text with reduced print and indentation.

Double quotation marks set off statements that are true to original meaning, but which may not be verbatim, as when rendered into modern English from archaic or foreign tongues; in those cases, translations may modify syntax and grammar in the original.

Single quotation marks set off quotations within quotations. They also are occasionally used to enclose conjectural remarks of uncertain origin, or they are used in substitution for Italics for words or phrases with special or idiomatic meaning.

The author is responsible for opinions and explanations of the factual record that will disagree in many instances from usual interpretations of events recounted here.

The author regrets the presence of factual and mechanical errors that remain in the text.

Read and enjoy,

HEL

PREFACE

This book traces the history of English law and government for fourteen centuries, from the withdrawal of Roman Legions from Britannia to separation of England’s New World colonies and the ratification of the Constitution of the United States. The governments of the United States and Great Britain, although separate now for over two centuries, share a deep common heritage. The starting point for American legal history goes back to the roots of English common law.

This narrative follows the evolution of Anglo-American common law. The chapters are arranged as a collection of brief biographies that credit in chronological order the individuals whose contributions to law and justice helped to create the tranquil civil world most of us enjoy today.

The model for English colonial government in the New World was the common law that had evolved over centuries in England. In much of history, laws were created to protect the wealth and power of those who enjoyed social privilege. Gradually, equity and justice in the protection of basic human rights of common mankind became compelling concerns of law and government. Slowly, even the rights of minorities whose members differed from the mainstream in language, religion, culture, and ethnicity became a concern of justice.

Each upward step in legal equity has been a move from injustice to a little less injustice. The evolutionary path toward greater justice has had its ups-and-downs. Reverses in justice occurred with the Anglo-Saxon invasion after the fall of Ancient Rome, with the Norman Conquest of 1066, in the Wars of the Roses, and in the vain self-serving reign of Henry VIII. Periods of notable advance in the history of law came with personal contributions of Alfred the Great, Henry Plantagenet, Simon de Montfort, Edward Longshanks, Good Queen Bess, Thomas Egerton, Edward Coke, Oliver Cromwell, and Founding Fathers of the United States Constitution.

All these events are revisited. The author has expressed original opinions and explanations of the record that will disagree in some instances from interpretations of these events by others.

The author hopes that this informal telling of a story, will contribute to an appreciation that living today in an enlightened time that aspires to provide equal justice for all under common law, is far superior to tribal life in a far distant Dark Ages when might-made-right and getting-even was the accepted goal of justice by tribal barbarians.

H. Eugene Lehman, Chapel Hill, NC, USA

2014

Introduction:

ANGLO-AMERICAN COMMON LAW

CREATION OF COMMON LAW

General understanding and acceptance of common law underlies the authority of judges to administer justice in courts of law. In primitive and advanced societies common law protects personal and common property and secures peace and tranquility in the community. The term common law appears in the subtitle of this narrative, and has several quite different meanings. For example, common law may be used in reference to unwritten traditional rules of etiquette that govern behavior of all members of a given culture, or common law may refer to the written laws enacted by a ruling legislative body that govern behavior of everyone under its jurisdiction, or common law may refer only to the body of laws that exist by being the product of consistent judicial decisions by courts of law. The general meaning of common law refers to the body of regulations that have arisen in cultures to preserve peace and tranquility by respecting the behavior and property rights of all individuals in the society. As customs change with the passage of time, common laws evolve ideally to support more perfect justice under law.

Whatever may be the original basis of creating common law, cultures tenaciously resist their modification or annulment. Laws for the regulation of behavior in societies gradually evolve by change mainly in the following ways.

Tribal custom common law. Ancient tribal customs give rise to unwritten rules that are accepted as the basis for peaceful existence by citizens in primitive societies. Folkways are time-honored practices that are inculcated from childhood as part of the common heritage of the culture. Tribal and folk customs play a major role in the origin of common laws of all cultures. Folk laws make social behavior in endemic communities unique, and they are expressed in what is considered fitting in etiquette and behavior on matters dealing with the sanctity of the home and defense of the homeland from invasion or attack. Tribal custom sets parameters of parental responsibility for children, for ownership of property, and for inheritance of wealth. Tribal custom sets appropriate retribution for personal injury, theft, murder, infidelity, and a host of mundane matters.

Traditional common laws are conventional rules for behavior that are understood and accepted by all who are part of a group’s culture. Different cultures consider, but treat in different ways, the rights and obligations of parentage, marriage, infidelity, ownership of property, theft, personal injury, murder, and common responsibility for civil defense.

Folk law preserves traditions of ancient ways of doing things. As such, traditional customs may be capriciously irrational and in conflict with what is taken to be acceptable behavior in other cultures that have solved their social problems in different ways. The individuals of one endemic population find aliens with different rules for social etiquette and community behavior to be uncouth, grossly immoral, and often criminally illegal.

Folk laws routinely respect the authority and rights of the most numerous and oldest historic social group at the apex of power in the culture. Common law based on established unwritten social custom preserves the status quo, and is notable for insensitivity to the rights of minorities that arrive later in the history of the group. By their general acceptance, folk laws carry unquestioned force of law in regulating behavior in endemic societies.

Religious canon common law. Canon laws tend to be exceedingly long-lived in cultures and to carry great force of law among religious followers because authority for canon law is often attributed directly to God. In theocratic governments, the state religion defines canon law. Canon laws based on religious dogma are distinct from secular laws in that they arise from the intuition of long-dead priestly authorities in a religious organization. Canon laws can be added to, modified, or annulled only by authorities within the religion. Only the priesthood can set dogmatic creeds for religious sects under their authority. Therefore, canon common law resists change or annulment from challenges arising from within or from outside the religion’s governing body. In cultures with a prevailing religious belief, canon regulations are often deeply imbedded as part of ancient tribal common law.

Canon law is not subservient to any secular ways for creating common law. However, in secular governments, canon laws can be annulled by action of a civil legislative body when contrary secular opinion becomes the major social opinion. For example, local governments throughout much of America have repealed the ‘blue laws’ that restricted business and sports on Sunday, which were based on canon law expressed in the Old Testament 10th Commandment, i.e., Remember the Sabbath day and keep it holy. In the United States, canon laws have been annulled by the Supreme Court and by Amendments to the Constitution that have forbidden slavery, bigamy, and examples of cruel unusual punishment that are acceptable, under Biblical canon law.

Executive mandate common law. Executive mandate law is generally referred to in histories as Seigniorial or Manorial Law, which, incidentally, was the usual way new local law was created in the Middle Ages when titled noblemen enjoyed great latitude in management of their personal estates. Heads of secular governments — kings, dictators, and presidents — often have unilateral authority to create common laws that are above regulation by traditional courts, judges, juries, or legislatures. In much of English history, rules mandated by the king were referred to as the King’s Will. Laws created by executive mandate usually are disparaged as miscarriage of democratic principles for rule by law.

In the United States, the American president has few mandated executive powers aside from the power to pardon any criminal without giving explanation of his reason for doing so. The most memorable exercise of executive creation of common law in American history was the Emancipation Proclamation by President Lincoln on January 1, 1863, which declared the end of slavery in the United States. Lincoln’s proclamation was based on the president’s unrestricted authority to pardon — Lincoln pardoned an entire race!

The emancipation decree was followed by Congress enacting the 13th Amendment to the Constitution, approved by the by the Senate on April 8, 1864, and by the House; on January 1, 1865; ratified by the 3/4ths of the states on December 6, 1865. The anti-slavery legislation was not enacted into law for fully two years after President Lincoln’s emancipation mandate.

Another example of presidential mandated law came when President Harry Truman, as Military Commander in Chief, ended racial segregation and ordered integration of United States military services in 1948. It received much protest in the Senate, which felt that the Presidential executive order was an unconstitutional invasion of the legislative powers of Congress. However, Truman’s order was never challenged in the Supreme Court, and Truman’s executive fiat has stood as law for over half a century.

A memorable example of a president’s use of executive mandate power is also seen in Gerald Ford’s executive pardon of ex-President Richard Nixon on September 8, 1974, which spared him further criminal prosecution by the Congressional Watergate Committee bent on continuing Nixon’s impeachment trial on charges of ‘High Crimes and Misdemeanors, Obstruction of Justice, Abuse of Power, and Contempt of Congress.’ Nixon resigned the presidency on August 9, 1974 without final Senate action on his impeachment.

Legislative statute common law. Legislated acts create general laws that apply uniformly to everyone under a given jurisdiction. Subordinate legislative agents such as states, counties, cities, and precincts all enact laws that are common for their jurisdictions, such as appropriate behavior for public schools, highways, waterways, residential communities, municipalities, counties, and states.

In small social groups, the entire population (i.e., a true democracy) participates in drafting laws and a majority of voting members decides on whether an act of law will be approved or rejected. Occasionally, the same type of general participation is used when statutory law is proposed as a referendum ballot, that is, one in which all enfranchised citizens can vote to approve or reject a legal issue. However, most often, statutory laws are created by republican forms of government in which the enfranchised citizens vote for representatives to serve in legislative parliaments, congresses, provincial assemblies, or lesser civic councils. Elected representatives are authorized to pass or deny statutory laws put to a vote.

Statutory laws created de novo by legislative bodies generally have prescribed penalties to ensure their enforcement. Laws passed by legislative bodies usually are enacted to correct some current problem or specific defect in common law with intent to improve the general welfare. Statutory laws often have transient value and frequently suffer from poorly anticipated secondary effects. Therefore, statutory laws often face amendment or repeal. Property management, travel regulations, and taxes are frequent subjects of statutory law. In general, legislatures eschew creating statutes that tamper with established custom; therefore, legislative bodies only rarely address profound ethical issues. Notable exceptions are the sequence of civil rights statutes passed by Congress in the past half-century.

Rulings by the Supreme Court have authority over all legislated common laws in the United States. State, county, municipal, and community laws cannot conflict with federal law. The question of whether International Common Law should take precedence over a nation’s common laws is a continuing problem that confronts nations.

Judicial decision common law. Judicial common law derives its authority from the principle of stare decisis, which holds that judicial decisions in court trials should follow established past judicial ruling on similar contested matters. That is, new court rulings should follow traditions of ruling on matters of law. Conformity with judicial precedence aspires to equity in application of common law to everyone. Respect for judicial tradition gives law stability.

Judicial common laws arise from ruling by judges in trial cases. Judges can revise or annul established common laws in recognition of changing social opinion, or on perceived injustice of past court adjudication. On occasion, adjudications have nullified age-old practices of prejudicial bigotry that were based on physical, mental, ethnic, gender, or other differences that characterized minorities. Judicial law is the major mechanism for the evolution of common law toward greater ethical justice. In the history of English common law, parallel courts existed called the Court of Common Pleas and Court of Chancery. Common Pleas, dealt with ordinary legal questions in application of established traditional common law to cases of civil complaint between individuals. Courts of Chancery considered ethical questions of perceived fairness and injustice in administration by common courts. In America, courts of civil and criminal law are charged with considering humanitarian matters that required adjudication. When equity (uniform fairness) and justice (moral right) were in question, Chancery judges had authority to decide the issue. In America, judicial review takes place in appellate court cases, the most important of which move from disagreement among District/Circuit Appellate Courts to the Supreme Court. Many adjudications of the Supreme Court have led to ethical improvement in civil rights in the United States. However, judges in courts do not write new laws; that remains the prerogative of the legislature.

NAPOLEONIC CODE

A notable exception to the way civil Anglo-American common law evolved over many centuries is found in the Napoleonic Legal Codes that underlie rule by law in most countries of Continental Europe and the Near East, among them are Belgium, France, Italy, Luxemburg, Netherlands, Poland, Portugal, Rumania, Spain, and many Islamic countries of Asia and Africa.

The original Napoleonic Code is a primary example of creation of common law by Executive Mandate. Napoleon Bonaparte in 1800 ordered a panel of distinguished judges to produce a complete legal code of French civil and criminal laws that dealt with actions between individuals, ownership of property, business transactions, military laws, civil procedures, and criminal law. Napoleon charged his judicial commission to prepare a complete legal codex that would respect traditions of law set out in the ancient Roman Codex Lex Militaris and Pax Codex Civilis and would be attentive to contemporary traditional secular law in France. In their labors, the judges recognized fundamental rights of mankind and borrowed heavily from French essays on the Enlightenment, on principles expressed in the American Declaration of Independence, and echoed the recently ratified United States Constitution with its Bill of Rights amendments. The Napoleonic Code granted religious freedom and denied class privilege based on noble birth. However, it did not guarantee rights of habeas corpus or trial by jury.

The Code Napoleon was completed and received Napoleon’s written signature of approval in 1804. With the stroke of his pen, Napoleon legitimized the French Revolution, erased medieval seigniorial secular law, and Catholic canon law that had ruled the lives of Frenchmen for over a millennium. The complete Napoleonic Code came into being in a moment by administrative fiat and the stroke of a pen, not by slow judicial and legislative accretion, as was the case in England for Anglo-American common law.

Codified legal systems of written law that outlined precise parameters of adjudication in all manner of social intercourse have evolved independently from the Napoleonic Code in nations of Continental Europe. Legality in civil law is determined by the precise meaning written into legislated acts of law. In nations under Napoleonic civil law, sovereign precedence is given to legislative enactments. Judges are sworn to enforce, not to interpret, laws that have been enacted into written law.

The United States Uniform Military Code shows influence from the Napoleonic Code. Trial by jury can be requested in trials under the Uniform Military Code, but that privilege is not an automatic right as is assured by the U.S. Constitution as a general right in civil law. The U.S. Uniform Military Code decides cases by tribunal (i.e., usually by three Judges Advocate), who act as jury in evaluating evidence, and as judge in assigning penalty to persons found guilty. In military trials, Judges Advocate always are of officer rank. Military trials require only two-thirds majority vote of judges to rule on innocence and penalty for guilt. However, military tribunals give the accused the right to have counsel, to refuse to testify against one’s self, to have witnesses for defense, to plead innocent, to not be tried a second time for the same offense, to be presumed innocent until judged guilty, and to negotiate penalty when one is judged guilty.

Common laws exist to protect peace, property, and security in society. Originally, privileged noble classes enjoyed legal rights that were denied to lower social ranks. Over time, most legal advances have come about through deliberate efforts of individuals who have worked to meet contemporary problems by modifying old ways of solving problems with new solutions. Thus, by gradual steps, Anglo-American common law evolved into what, in eyes of the law, we take to be a classless society. The activists who figured prominently in the following essays jousted with established custom of the time in defense of greater justice for all mankind. Perfect justice has not yet been achieved, but progress continues to move from the grossly unjust to the slightly less unjust.

PART I

FOUNDATIONS OF ANGLO-AMERICAN GOVERNMENT AND COMMON LAW (A.D. 406 — 1307)

The Corpus Juris Civilis (i.e., our common law) was created by well-intentioned lawgivers of the past, but there will always be room for improvement of justice in the way society governs itself.

Early in the first century A.D. in the reign of Emperor Claudius, military forces of Ancient Rome conquered Britain. By A.D. 78, Rome had subdued all present England and Wales, and Britannia became the northwest province of the empire. The colonial relationship of Britannia to Rome reached its peak during the reign of Emperor Hadrian (A.D. 117 — 138). The island colony remained under Roman control for a little over three centuries (A.D. 43-410). During that time, Britannia enjoyed civility enforced by the legal system called the Pax Romana Civilis (the Peace of Rome) and Codex Lex Militaris (i.e., the Military Legal Code). The Roman codes of civil and military laws comprised a rational encyclopedia of laws organized into related categories for easy reference. Britannia experienced a high level of peace, urban sophistication, and Latin literacy during the period of Roman rule. The level of civilized living experienced by people in England under Rome would not be realized for a thousand years, not again until the reigns of Kings Edward I and Edward III in the 14th century A.D.

Chapter 1

ROMANIZED CELTIC RULE IN BRITANNIA (c. 400 — c. 460)

LAST ROMAN RULERS IN BRITANNIA

In A.D. 406-407, Rome was under attack from Vandal barbarian tribes north of the Rhine River. Flavius Claudius Constantinus was the military Praetor Commander of Britannia at the time. He withdrew the Roman legions from England to accompany him to the Continent where he engaged in the general effort to protect the Empire from the German invaders and declared himself to be Constantine III the Roman Emperor of the West. He was of Celtic Briton ancestry and was not related to Constantine the Great. After Constantinus’ departure from Britannia, the central government in England lacked a resident Roman army capable of protecting civil rights or of preserving the civilized order Britannia had enjoyed for three centuries as the Western Province of Rome.

After three centuries of occupation and rule by Roman governors with highly trained occupation army, the native Britons in the northern, central, and southern parts of England had accepted the Roman way of civilized life imposed upon them by their conquerors. However, Scotland, Ireland, Wales, and western regions of Cambria and Cornwall in northern and southern England were never fully assimilated into the Empire. In those outlying regions, native Celtic culture, language, and tradition resisted change and were preserved over following centuries.

Alaric and the Visigoths sacked the City of Rome in 410. The collapse of Imperial Rome accelerated rapidly following invasion of northern Italy by Attila and his Mongol Huns in 451-452. Repeated attacks by invading northern tribes further weakened Roman authority. For three-quarters of a century after the departure of Roman legions from Britannia, around 383-388, Celtic England experienced self-rule, which is identified here as Romanized Celtic Britannia. By the beginning of the 5th century called the Golden Age of Law and Order in Rome and its provinces had ended. The savage time of Anglo-Saxon-Jute invasion of Britannia began in 449 when OerlKönigen (i.e., the Earl Kings) Hengist and Horsa of Denmark settled in Kent.

No unbiased accounts of Romanized Celtic Britannia exist. Records of the decline in Roman government of Britannia after the end of the 4th century are spare and at variance in the dates and facts reported in records of the time. The authors of these spare records were Christian priests or monks who re-entered England after the end of the 6th century. The earliest and least biased record of events in England following departure of Roman legions between 384 and 406-407 was written by St. Gildas who lived a century after the events he described. Later records for the time were clouded by prejudicial opinions reported as fact by the Christian authors who criticized the Celtic Briton leaders for permitting Christianity in England to be replaced by heathen Norse Gods brought in by the Danish and German invaders.

Therefore, the following narrative of Celtic Britannia must be thought of as only a ‘reasonable reconstruction’ of major events reported as historic fact in Britannia during the 5th century after rule from Imperial Rome had departed from England and barbarians established Nordic tribal law throughout England.

The last Roman Praetor, Flavius Magnus Maximus, was the governor of England from 383 to around 388. Soon after he was appointed magistrate in command of Britannia, he left England in 383-384 and took the Roman Legions resident in England with him to advance his imperial ambition of conquest on the Continent. Maximus arranged for an official transfer of government authority to native residents in Britannia.The time often given for the termination of Roman rule of Britannia is 410, the year Emperor Theodosius’ son, Emperor Honorius, refused to honor a Briton request for military protection from invading Norsemen. In essence, Honorius told his subjects in Britannia that ‘they must cope with their problems as best they could, because Rome was so beset with its own problem of Vandal invasion that Rome could ill-afford to lose a single man for the defense of Roman subjects in distant Britannia.’ The Celtic governors of Britannia who followed Maximus were, namely:

Dionotus, of whom little is known, followed Maximus in 388 and ruled for an uncertain number of years before he died in combat.

Gracianus Munieps defeated Dionotus and in turn was replaced shortly before 400.

Constantinus was governor of Britannia until his death in 411. The historian Geoffrey of Monmouth reported that Constantinus was descended from a Cornish king, not from Emperor Constantine.

Constans, Ambrosius Aurelianus, and Uther Pendragon were three sons of Constantinus. Constans and Aurelianus became governors of Britannia, but Uther, who was the father of legendary King Arthur, gained immortality for his minor part in the Welsh Arthurian Legend.

Vortigern (christened Guidolin or Vitalinus (?)) was the primary Celtic governor of Britannia after the Roman departure from England. His two sons, Vortimer and Cadeyrn, figure briefly in Celtic history of England.

Hengist and his twin brother Horsa were leaders in the Nordic invasion that conquered Britannia. Hengist was the ancestor of early kings of Kent.

Following departure of the Roman legions, the central government in Britannia lacked a resident militia capable of enforcing civil law and order. In the absence of central authority, government and national defense fell to numerous local magistrates in the minor urban centers at Amesbury, Bath, Canterbury, Carlisle, Colchester, Dover, Exeter, Gloucester, Leicester, Lincoln, London, Richmond, Salisbury, St. Albans, Winchester, and York. The power vacuum in central government invited challenge from northern Scottish Picts, from Gaelic Irish to the west, and southwestern attack from native Celtic Britons in Wales and Cornwall that had never been subdued by Rome. General internal rebellion threatened post-Roman central government in Celtic Britannia.

VORTIGERN ATTEMPTS TO RULE BRITANNIA

Vortigern is the best-documented native Briton to serve as governor of Celtic Britannia after official Roman rule ended. The name Vortigern is a Celtic word meaning, Overlord; thus, Vortigern is the title for his official position as chief magistrate of post-Roman Britannia, but it also is the personal name he carries in history.

When Vortigern came to power, Britannia was beset by many woes and desperately needed strong decisive leadership. The municipal governments within Britannia competed for power. They protested central control and resisted Vortigern’s demands for militia to defend their common borders from attack by outlying regions

Early in Vortigern’s rule, probably around 425, a small group of Norsemen in longboats (possibly on invitation from Vortigern) sailed across the North Sea and settled north of the Wash in what is now Lincolnshire. Vortigern hired the Jutes and Saxons as mercenaries to repel Pict aggression in northern England. The Norsemen fought well and vigorously defended their settlement in England. They invited more of their countrymen from German Anglia and Danish Jutland to join them. They were the vanguard of a Germanic invasion that would soon overwhelm the land.

In 437, Vortigern faced an internecine revolt when Ambrosius Aurelianus (i.e., the second son of former Pretor Constantinus) came of age and returned to England with his claim of an inherited right to rule Britannia. Aurelianus defeated Vortigern’s son Vortimer in battle, and Vortigern was forced to resolve the problem diplomatically by appointing Aurelianus to be his co-governor of western England where he was given responsibility for defending Britannia against border attacks from Welch Britons. Aurelianus’ leadership, for the most part, was ineffectual; however, he would remain as the military leader for later Celtic opposition to the Anglo-Saxon invasion.

In following years, border problems continued to weaken Vortigern’s ability to rule. In desperation, Vortigern again appealed for Norse assistance. He approached the savage twin brothers Hengist and Horsa, who were Earl-King warrior chiefs of the Danish peninsula of Jutland. The Jutes were famed for being fearless pirates who were never beaten in their ruthless pursuit of land and power. Sometime between 446 and 449, Vortigern contracted Hengist and Horsa to enter Britannia with their Jute kinsmen to serve as mercenaries who were hired to drive Pict insurgents from western and northern regions of Britannia. The original agreement was that the Jutes would receive provisions and treasure in some form for their services, but they would not be given title to any land in Britannia. Vortigern thought he was using a time-tested ploy of the Roman legions, namely, he employed native barbarians to give military assistance in local struggles, with full knowledge that after their help to secure a victory, the savage poorly trained militia would be sent packing by the superior strength of Rome’s skilled military legions. In a manner of speaking, the invitation by Vortigern to Hengist and Horsa to come to England had inadvertently, as the saying goes, ‘invited the Devil to tea.’

An unanticipated complication arose shortly after the arrival of the Jutes from Denmark. Hengist’s daughter Rowena was introduced to Vortigern, and her Nordic beauty immediately captivated Vortigern who was determined to acquire her as his wife. Rowena and Vortigern were married (possibly bigamously), after Hengist demanded and received a deed for the County of Cant (Kent) as her dower. In this way, Hengist acquired a territorial foothold in England. Almost immediately, hordes of Jute kinsmen of Hengist and Horsa immigrated and set up permanent residence in the rich farmlands of southeastern England.

The arrival of Jutes in England created an immediate conflict of cultures between resident Celtic Britons and the alien Norsemen. The native Celtic Britons were bilingual; that is, they spoke a Celtic tongue (akin to modern Welsh) and Latin (the language of government and trade). The Celtic Britain religion was pre-Nicene Arian Christianity with broad tolerance of Roman Pantheism. The native Celts enjoyed general aspects of civilized life under Roman common law. In contrast to the Celtic population in Britannia, the Jutes spoke a Germanic Nordic tongue; they worshiped heathen Nordic Gods; they had no written laws, and they acknowledged only that might made right, and that justice meant revenge.

After 455, Hengist was the sole ruler of Kent and the leader of the Anglo-Saxon invasion that soon overwhelmed England. Anarchy characterized the years 455 to 463. Four major battles between the native Celtic Britons and Jute Norse aliens were fought in those years. The last date given for Vortigern coincides with the first these battles, which was decisive in determining the defeat of native Celtic Britons in the period we here have called Romanized Celtic Britannia.

After the first battle in 455 in which Horsa probably was killed, Hengist planned a peace conference ostensibly to resolve differences between the warring Celtic Britons and Jute Danish Norsemen. Hengist’s true motive possibly was to avenge his twin brother Horsa’s death. Celtic Briton leaders from all major towns in England were invited to attend a parley at Amesbury near Stonehenge. Hengist ordered all his Norsemen to bring long knives well concealed in their tunics. As their genial host, Hengist provided an abundance of strong mead for refreshment. Then, before dawn, when all the Britons were in drunken slumber, the Norsemen fell upon them and cut their throats. The Anglo-Saxon Chronicle records the event as, The Night of the Long Knives.

HENGIST TAKES COMMAND OF ENGLAND

Hengist planned and carried out the brilliant deception of the ‘Night of the Long Knives’ at Amesbury, which removed at one decisive